Court Information

Ontario Court of Justice

Date: January 5, 2018

Court File No.: Barrie 16-3007

Between:

Her Majesty the Queen

— and —

Kristopher Ogden

Before: Justice C.M. Harpur

Heard on: September 13, 15 and December 7, 2017

Reasons for Ruling on Mr. Ogden's Application to Stay released on: January 5, 2018

Counsel

Sarah Sullivan — counsel for the Crown

Nate Jackson — counsel for the accused Kristopher Ogden

I. Background

[1] On February 10, 2017 I found Mr. Ogden guilty of seven offences committed on February 13, 2016 in connection with his participation with two other men in the home invasion of an elderly man, Donald McKinnon, while disguised and in possession of a knife, and his theft with these men of Mr. McKinnon's property, including a motor vehicle. Mr. Ogden has been in jail awaiting sentencing since I gave judgment, indeed, since the date of his offences almost two years ago. The sentencing has been repeatedly adjourned, initially to explore the prospect of a sentencing circle and, when Mr. Ogden elected not to pursue that procedure, to deal with this application, brought September 1, 2017, to stay the charges against Mr. Ogden on the basis of the violation of his s. 7 and s. 12 Charter rights.

[2] On August 7, 2017 Mr. Ogden was being held in remand in a segregation unit cell at Central North Correctional Centre (CNCC). On that day at approximately 11:30 a.m., during the lunch meal service, Mr. Ogden was involved in an altercation with three Correctional Officers (COs) as they sought to force Mr. Ogden to withdraw his arms back into his cell through the meal tray slot in the otherwise-solid wall of his cell. Eventually in this altercation Mr. Ogden was sprayed twice in the face with OC ("pepper") spray by one of the COs. Mr. Ogden then collapsed into the cell and, for several minutes, coughed, cried and gagged in reaction. He was subsequently attended in his cell by nursing staff, among others, initially rejecting and ultimately receiving minor medical attention.

[3] This application followed the August 7 incident. It was heard on September 13 and 15 and on December 7, 2017. Mr. Jackson for Mr. Ogden called the evidence of Mr. Ogden, OPP Detective Constable William Brown, CO Christopher Jackel, CNCC Security Manager Sergeant Jonathan Vanderboom, CO Clayton Cunningham, CO Cynthia Dreschler and CNCC Risk Management Sergeant Cheryl Spooner. Ms. Sullivan for the Crown called no witnesses.

II. Issues

[4] In essence the issues presented for determination are two: (i) did the COs breach Mr. Ogden's right to security of the person under Charter s. 7 and/or his right not to be subjected to cruel and unusual treatment or punishment under Charter s. 12; and (ii) if so, is the appropriate remedy either a stay or a reduction of Mr. Ogden's otherwise-determined sentence pursuant to Charter s. 24(1)?

III. The Evidence

A. Mr. Ogden's Evidence

[5] Mr. Ogden testified that, in the morning of August 7, 2017, he had consumed only part of a bottled soft drink he had purchased from CNCC's canteen and had then gone to the exercise yard, intending to finish the drink on his return. On returning he was told that the pop bottle had been thrown out by CO Jackel. Mr. Ogden was upset by what he regarded as a wrongful taking of his property. Shortly after his return to his cell the lunch meal service began. Mr. Ogden's meal hatch was unlocked and opened by the first CO helping to serve lunch to the several inmates in the segregation wing. That CO was followed by a second who placed Mr. Ogden's meal tray on the hatch ledge where it was taken in by Mr. Ogden. The normal routine is that a third CO then comes by and closes and locks the meal hatch. The third CO on this occasion was CO Jackel. By the time he arrived at Mr. Ogden's cell Mr. Ogden had extended one of his arms a short distance out through the hatch. This prevented CO Jackel from locking the hatch. Mr. Ogden tried to take up the matter of the discarded pop bottle with CO Jackel. CO Jackel asked whether Mr. Ogden would allow him to close and lock the hatch. Mr. Ogden said he would not. CO Jackel then grabbed Mr. Ogden's arm and began to twist it. Mr. Ogden grabbed the hatch with his other hand. Another CO grabbed that hand and began to pry at his fingers. Mr. Ogden yelled "what are you going do, break my arm?" and was immediately pepper sprayed in the face. He fell back, was unable to breathe and vomited and, at the time he testified, attributed a huskiness in his voice to an injury to his throat at the time of the incident.

B. William Brown's Evidence

[6] Detective Sergeant Brown is part of the Midland detachment of the Southern Georgian Bay OPP. He was tasked to investigate the August 7, 2017 incident involving Mr. Ogden in respect of the possible laying of criminal charges against any of the parties involved. He viewed a video of the cell corridor made on August 7, 2017 while the incident was occurring. Detective Sergeant Brown concluded that, while there may have been a breach of CNCC's internal policy, the COs involved in the incident did not commit a criminal offence. The internal policy the officer was referring to was a "Use of Force, Institutional Services Policy and Procedures Manual" and, specifically, two pages of that manual. The manual excerpt was made Exhibit 1 on the voir dire. The cell corridor video was made Exhibit 2.

C. Christopher Jackel's Evidence

[7] CO Jackel confirmed having removed a soft drink bottle from Mr. Ogden's cell during the morning of August 7, 2017 while Mr. Ogden was absent from the cell. He said the bottle was empty.

[8] CO Jackel was the third CO involved in attending at Mr. Ogden's meal hatch during the service of the lunch time meal. His job was to close the meal hatches of the cells in the jail corridor. When CO Jackel reached Mr. Ogden's cell to close his hatch, one of Mr. Ogden's arms came out of the hatch toward CO Jackel. He recalls no expression of concern or protest by Mr. Ogden about the soft drink bottle when he arrived at the cell. CO Jackel thought Mr. Ogden was trying to assault him. He also had concerns that Mr. Ogden might be trying to grab his duty belt or his keys. He said that he "guessed it was possible" that Mr. Ogden was simply putting his hands through the hatch and not reaching for him but that that was not his impression at the time. CO Jackel tried to take control of Mr. Ogden's wrist and to apply a "joint-locking" technique which would cause pain to Mr. Ogden if Mr. Ogden struggled. It did not occur to CO Jackel simply to retreat from Mr. Ogden. CO Jackel called for help. CO Wherley, the CO who had unlocked and opened Mr. Ogden's hatch, joined CO Jackel at the hatch and grabbed Mr. Ogden's other hand. CO Jackel did not regard himself or CO Wherley as being in imminent danger. Had they been in imminent danger, CNCC policy would allow for the possibility of disengagement with Mr. Ogden. CO Jackel repeatedly told Mr. Ogden to stop resisting and to pull his hands back into the hatch. Mr. Ogden did not. CO Jackel and CO Wherley were unable to gain control of Mr. Ogden's arms. He continued to resist their efforts to gain control. A third CO, CO Cunningham, came to the hatch and pepper sprayed Mr. Ogden. No warning about spray was given prior to that step being taken.

[9] In response to Mr. Jackson's suggestion that the situation would have been defused if all of the COs had simply taken a step back from the hatch, CO Jackel disagreed and said:

In my experience I would have gotten feces thrown on me, urine, I would have items thrown at me. I've seen this happen on dozens of times [through the meal hatch].

However, CO Jackel had never had Mr. Ogden throw anything at him through the hatch of his cell.

[10] CO Jackel regarded the Use of Force Policy as complied with. He did first attempt verbal intervention, as the policy requires, in the form of repeated demands to Mr. Ogden to stop resisting and to bring his arms in. CO Jackel regarded the eventual grabbing of Mr. Ogden's arms and the eventual pepper spraying as the only options at the stages they were employed. In retrospect, CO Jackel regarded the steps he and his fellow COs took as appropriate.

D. Jonathan Vanderboom's Evidence

[11] Sergeant Vanderboom was the Security Manager at CNCC in August 2017. Although not part of the Risk Management Team (RMT) at the institution, one of his tasks was to download security videos of incidents within the jail, to view them as he did so, and to flag for RMT instances of excessive use of force or other breaches of the Use of Force Policy. Mr. Vanderboom viewed Exhibit 2 in the voir dire in August 2017 shortly after the incident. He did not regard any of what he saw as a breach. He said "it seemed like a straightforward incident".

[12] Sergeant Vanderboom said that the incident remains under review at the institution by RMT and that no final conclusions have been drawn by RMT with respect to the incident.

E. Clayton Cunningham's Evidence

[13] CO Cunningham was the CO who administered the pepper spray through Mr. Ogden's meal hatch. He said he heard CO Jackel direct Mr. Ogden to pull his arm back through the hatch and then joined CO Jackel and CO Wherley at Mr. Ogden's hatch. He sprayed twice through the hatch into Mr. Ogden's face. Mr. Ogden had continued to struggle with the other COs at the hatch following the first spray. CO Cunningham issued no warning. He regarding Mr. Ogden's open meal hatch and his arms extended through the hatch as a threat. He felt Mr. Ogden's actions were assaultive. He heard Mr. Ogden being told repeatedly to withdraw his arms. CO Cunningham regards the steps he took as appropriate and as a last resort. Of his fellow COs' actions, CO Cunningham said they "reacted to an assaultive gesture is what they were doing. They were trying to gain control. They had no idea what was gonna take place next." CO Cunningham acknowledged having asked the other COs why the incident had begun before he completed his own incident report.

F. Cynthia Dreschler's Evidence

[14] CO Dreschler was the CO pushing the meal tray cart and placing the meals on the meal hatch ledges opened by CO Wherley. She was present when Mr. Ogden was pepper sprayed. CO Dreschler said CO Jackel told Mr. Ogden "for some time" prior to the first pepper spray to put his arms into his cell. CO Cunningham gave no warning of the fact that he was going pepper spray Mr. Ogden but CO Dreschler did not feel he was obliged to do so. Pepper spray is to be used only as a last resort but it was so used in the Mr. Ogden's case since Mr. Ogden was being assaultive and was not responding to verbal instruction and the CO's had not gained control of his arms.

[15] CO Dreschler agreed with Mr. Jackson that CO Jackel and CO Wherley could have stepped back to elude Mr. Ogden's arms but said she was "not aware of what it was that influenced their actions".

[16] CO Dreschler has, since the August 2017 incident, seen a CNCC directive advising that it is not appropriate to pepper spray through meal hatches. She has heard that pepper spray had been deployed through hatches on other occasions in the segregation unit prior to the incident with Mr. Ogden.

G. Sergeant Cheryl Spooner

[17] Sergeant Spooner is part of CNCC's RMT. The written risk management process begins with a Local Investigation Report prepared by an Investigating Manager (Part A). Sergeant Spooner reviews Part A, completes her own report (Part B) and organizes a Risk Management Team meeting to consider the incident further. The team meets and prepares another assessment (Part C). If not all team members are satisfied that all at CNCC's policies and procedures were followed, including the Use of Force Policy, the incident may, among other options, be referred to the Ministry of Community Safety and Correctional Services for further action.

[18] Part B completed by Sergeant Spooner concerning Mr. Ogden's incident was made Exhibit 3 on the voir dire. In it, under the heading "Use of Force Preliminary Analysis", Sergeant Spooner said the following:

The inmate was being disruptive and non-compliant with Officers' direction to pull his hands back into this cell, following meal delivery. Officers attempted control techniques that failed to get the inmate's hands back into the cell, pepper spray was then deployed through the meal hatch by a third Officer. Following the deployment the hatch was secured.

The Policy is clear about when force can be used and there is a management model to be followed. As the inmate was in a secure place at the time and did not pose a direct threat, deployment of OC spray was not necessary.

[19] Sergeant Spooner also marked on Part B the boxes indicating that she was not satisfied either that "the use of force policies and procedures was [sic] followed during this event" or that "all other Ministry policies and procedures were followed".

[20] Part C completed by the RMT was made Exhibit 4 in the voir dire. In it, among other concerns, the team said "Use of Force Management Model was not followed as the inmate did not pose a direct threat, therefore deployment of OC spray was not necessary" and "manager was not contacted before deployment of OC spray". Part C, dated August 15, 2017, indicates that the RMT is recommending a referral to Correctional Services for further investigation.

[21] Sergeant Spooner's understanding was that CO training does not prohibit the use of pepper spray through meal hatches. She confirmed that, having reviewed the cell corridor video in Mr. Ogden's case, she did not regard the deployment of pepper spray as necessary. She confirmed that the further investigation by Correctional Services recommended by RMT is ongoing.

[22] Sergeant Spooner has become aware of approximately one-half dozen reports involving the use of pepper spray through hatches since she became Risk Management Sergeant in April 2017. Of the half dozen, four or five of the incidents in question have occurred since Mr. Ogden's incident. Sergeant Spooner does not regard the use of pepper spray at CNCC as a systemic problem and does not regard all uses of pepper spray in the jail as misuses. She described its use as "presumptively excessive" and said that she "does not believe in violence [by the COs] to achieve compliance [by the prisoners]".

IV. Analysis

[23] Both Mr. Jackson and Ms. Sullivan have referred me to the Supreme Court of Canada decision in R. v. Nasogaluak, 2010 SCC 6. I regard the reasoning of LeBel J. in that case for a unanimous court to be largely determinative here. It is not entirely determinative in that the primary relief sought by Mr. Ogden in this application is a stay of the Crown's proceeding against him. Nasogaluak provides a firm discouragement of resort to Charter s. 24(1) remedies generally as part of the sentencing process. However, if a stay were appropriate in this case, it appears to me only available by way of a s. 24(1) remedy and such a route is not precluded by Nasogaluak when essential.

A. The Application for a Stay

[24] That said, I am far from persuaded that a stay is an appropriate disposition here. Mr. Jackson squarely acknowledges in Mr. Ogden's factum that a stay is the appropriate remedy only in the clearest of cases where an accused's right to make full answer and defence cannot be remedied, or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution continued: R. v. O'Connor (1995), 4 SCR 411 as cited in R. v. Babos, 2014 SCC 16. However, Mr. Jackson submits that Mr. Ogden's situation falls into the "residual" category described in the following manner in Babos at paragraph 35:

…whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system.

[25] I must weigh the gravity of the alleged state misconduct against the societal benefit of imposing sentence on Mr. Ogden. Putting Mr. Ogden's position at its highest for this purpose, his side of the scales bears the weight of an excessively forceful response by CNCC COs to his refusal to comply with the institution's meal service routine, including an unnecessary deployment of pepper spray which caused Mr. Ogden considerable, if transitory, discomfort. On the other side of the scales rests Mr. Ogden's adult record made Exhibit 5 at trial comprising some 87 offences beginning in 2002, at least eleven of them offences of violence, together with the several very serious offences on which he is scheduled to be sentenced by me. The alleged wrong on which Mr. Ogden relies in this balancing exercise is dramatically outweighed by the interests of society in having Mr. Ogden's case proceed to sentencing. In terms of "societal notions of fair play and decency", the reasonable, informed member of society witnessing this case is far more likely to be appalled by its cessation short of sentencing than by the court's willingness to proceed notwithstanding the wrongful pepper spraying of Mr. Ogden on August 7, 2017.

[26] Mr. Jackson notes the evidence of other incidents of the use of pepper spray through meal hatches both before and after Mr. Ogden's incident. The evidence, it is argued, supports a finding that the conduct is systemic, adding to the gravity which this court should address and rendering a stay appropriate. I cannot agree. The evidence about other incidents was hearsay. No detail of those incidents was before the court. To seek a finding on this basis that the pepper spraying of Mr. Ogden represented one of many wrongful applications of force at CNCC is overreaching.

B. Jurisdiction

[27] Because a stay is not available as a remedy to Mr. Ogden, LeBel J's reasoning in Nasogaluak applies to Mr. Ogden's application. The court described the proper approach to an allegation of state misconduct in the sentencing process as follows in that case:

[3] As we shall see, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.

[4] Where the state misconduct does not relate to the circumstances of the offence or the offender, however, the accused must seek his or her remedy in another forum. Any inquiry into such unrelated circumstances falls outside the scope of the statutory sentencing regime and has no place in the sentence hearing. Likewise, a reduction of sentence could hardly constitute an "appropriate" remedy within the meaning of s. 24(1) of the Charter where the facts underlying the breach bear no connection to the circumstances of the offence or the offender.

[5] As a general rule, therefore, it is neither necessary nor useful to invoke s. 24(1) of the Charter to effect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged. When acting within the boundaries of the statutory sentencing regime, of course, the sentencing judge must exercise his or her discretion within the parameters of the Criminal Code. The judge must impose sentences complying with statutory minimums and other provisions which prohibit certain forms of sentence in respect of the offence.

[28] The question of whether Mr. Ogden's allegations fall into that category of circumstances described in Nasogaluak as ones for which "the accused must seek his or her remedy in another forum" has certainly given me pause. This is an incident which occurred some six months following judgment which has no connection whatever with the offences which occurred in February 2016 on which judgment was given. It is mere happenstance that Mr. Ogden remained in jail awaiting sentencing in August 2017 when his altercation with the COs occurred. There are several decisions which would suggest that this lack of connection between the matter on which the court is and has been engaged – the trial and now the sentencing of Mr. Ogden – and the alleged state misconduct should preclude a consideration of Mr. Ogden's application on its merits: R. v. 9746497 Ontario Inc., 2001 SCC 81, paras. 79, 89 and 93; R. v. Martin, [2016] O.J. No. 5752 (OCA), paras. 47 and 48.

[29] In Nasogaluak itself the court refers on occasion to the prerequisite that the state misconduct sought to be introduced in sentencing relate "to the circumstances of the offence or the offender" [my emphasis]. At other times, however, specifically in paragraphs 49, 50 and 63 of the report, LeBel J. uses the conjunctive "and" - "provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence…"; "the circumstances of alleged Charter breaches can be considered during sentencing when they are relevant to the offender and to the offence…" [my emphasis]. The and/or distinction is an important one since, clearly in Mr. Ogden's case, his incident in August 7, 2017 does not relate to his February 2016 offences and consideration of the alleged abuse can only be undertaken if a connection to him alone will suffice. To interpret the disjunctive language in Nasogaluak as opening the door to allegations of state misconduct in sentencing so long as the alleged misconduct relates to the offender seems to me to run contrary to the generally restrictive approach to this issue being endorsed by the court in the decision; any alleged state misconduct about which an offender has standing to complain, no matter how remote, will be state misconduct which relates to that offender.

[30] On the other hand, in paragraph 50 of the report in Nasogaluak, the court refers, with apparent approval, to R. v. Munoz, 2006 ABQB 901 where, while Mr. Munoz was awaiting trial for offences including robbery and aggravated assault, he was subjected to violence by his guards and forced to wear a degrading prisoner uniform. The trial judge's reduction of the sentence he would otherwise have imposed for the offences, to take into account the breaches of Mr. Munoz's s. 7 and s. 12 Charter rights, was upheld by the Alberta Court of Appeal and attracts no criticisms from the Supreme Court of Canada in the reference in Nasogaluak. I see little basis to distinguish between Mr. Munoz's circumstances in that case and Mr. Ogden's here with respect to the appropriateness of a consideration of alleged state misconduct in sentencing. In both cases the instances of alleged state misconduct were discrete events.

[31] Thus, although the answer to the question of whether I should exercise jurisdiction to consider Mr. Ogden's application on its merits is not clear to me, I propose to err on the side of caution and to do so.

C. Resort to s. 24(1)

[32] Accepting that there exists an adequate connection between Mr. Ogden's allegation of state misconduct on August 7, 2017 and his sentencing for the crimes committed in February 2016, Nasogaluak provides clear guidance as to the manner in which the allegations are to be considered. The court described the process as follows as paragraph 47 of the report:

The sentencing principles described above must be understood and applied within the overarching framework of our Constitution. Thus it may, at times, be appropriate for a court to address a Charter breach when passing sentence. This may be accomplished without resort to s. 24(1) of the Charter, given the court's broad discretion under ss. 718 to 718.2 of the Code to craft a fit sentence that reflects all the factual minutiae of the case. If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence. Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant . . . mitigating circumstances relating to the offence or the offender". It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender's Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence.

[33] I take it then that in considering Mr. Ogden's allegations of state misconduct there is little significance in whether or not that misconduct is characterized as a violation of Charter rights. Either way, the facts can and should be taken into account in arriving at a fit sentence. Further, based upon the excerpts from Nasogaluak referred to at paragraph 27 above, absent the need for relief necessitating the very broad remedial discretion conferred by Charter s. 24(1), such as the reduction of a sentence below a statutory minimum or a stay, the sentencing relief potentially available to an offender arises from the provisions of the Criminal Code, not the Charter.

[34] Mr. Ogden's application is brought under the provisions of the Charter. For the reasons set out above, no relief is available to Mr. Ogden on that footing. His application must be dismissed. Since, however, Mr. Ogden's application has at its core an allegation of state misconduct, and since state misconduct is a matter which I can and should consider in sentencing Mr. Ogden if it is established, I propose to consider the merits of that allegation in the balance of these reasons.

D. Excessive Force

[35] The onus of proof is Mr. Ogden's to establish the excessive force said to constitute the breaches of s. 7 and s. 12 of the Charter. The burden of proof is a balance of probabilities. The record in this voir dire – which, it should be noted, involved the calling of no witnesses by the Crown and, for the defence, comprised the evidence of Mr. Ogden, the three COs involved in the incident, the evidence of two CNCC reviewers of a video of the incident and an OPP Detective Constable reviewer of that video – does not satisfy me that excessive force was used.

[36] The COs who testified all expressed the view that the deployment of pepper spray in the circumstances presented to CO Cunningham was appropriate. CO Jackel testified to his experience of the dangers to be associated with allowing the meal hatch of a disgruntled inmate to remain open. I did not regard the dangers he described as insignificant. The use of force manual extracts made an exhibit do not prohibit the use of pepper spray by COs. They do require non-violent de-escalation of potentially violent circumstances to be attempted first. The undisputed evidence of the COs is that a verbal defusion of the situation was initially attempted. The COs acknowledged that the use of pepper spray is to be seen as a last resort but said that the circumstances here required that last resort.

[37] Mr. Ogden relies, principally, on what Mr. Jackson submits is an obvious overreaction on the part of the COs to Mr. Ogden's at-worst obstructionist conduct, given the ability of the COs to bring their confrontation with him to an end by merely stepping back away from his cell. Mr. Ogden relies as well on the opinions of Sergeant Spooner and the RMT that the use of pepper spray by CO Cunningham was not in accordance with CNCC policy and procedure.

[38] As to the first of these, CO Jackel did not waiver in his evidence that, in the moment, his perception was that Mr. Ogden was reaching or striking out from the meal hatch to grab or strike him, although he did concede at trial, having viewed the cell corridor video, the possibility that Mr. Ogden was not reaching for him. The implication of his testimony was that, in these circumstances, physically engaging with Mr. Ogden with a view to obtaining control over his arms and ensuring that Mr. Ogden pulled them back into his cell so the meal hatch could be closed was in accordance with CNCC policy and procedure, indeed that to withdraw from Mr. Ogden in these circumstances would be a breach of procedure absent a threat to his physical security. I note that the use of force manual extract made Exhibit 1 on the application is part only of the entire manual. The part exhibited seems to me to beg the question of whether the force used by CO Jackel and CO Cunningham was justified. Paragraphs 3.1.1, 3.1.4, 3.1.5 and 3.1.6 provide as follows:

3.1.1 Whenever possible, and given all circumstances, staff should attempt to resolve incidents using verbal intervention skills, such as defusion of hostility, as well as other peaceful resolution strategies (i.e. officer presence or disengagement - see 8.0 - Defusion of Hostility).

3.1.4 No employee shall use force against an inmate unless force is required in order to enforce discipline and maintain order within the institution; defend the employee or another employee or inmate from assault; control a rebellious or disturbed inmate; or conduct a search (see Searches) - R.R.O. 1990, Reg. 778, s. 7(1).

3.1.5 Force must always be the action of last resort. The amount of force used must only be that amount needed to control a situation. When there is a decision to use force, it must be used in compliance with the law, good judgment, and Ministry policy, procedures and training.

3.1.6 When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive, having regard to the nature of the threat posed by the inmate and all other circumstances of the case - R.R.O. 1990, Reg. 778, s. 7(2).

[39] Section 8.0 of the policy – "Defusion of Hostility" - which apparently deals with the issue of officer disengagement - was not introduced into evidence.

[40] As to the opinions expressed by Sergeant Spooner and, to this stage, by RMT, it is clear that these are conclusions which are part of the institution's and Correctional Services' review process and that that process is incomplete, the final decision not yet made. Thus, even if the opinions were admissible, they could not be seen as anything other than provisional. I do not see how the evidence can, in any event, be admitted. The defence did not seek to qualify Sergeant Spooner as an expert in the area of excessive force and, even if it had done so, the issue on which her view was elicited was one of the very issues I have been asked to decide, a circumstance which militates against the receipt of the opinion: Grant v. Regina, [1982] 2 S.C.R. 819; R. v. Mohan, [1994] 2 S.C.R. 9. The same detractions are inherent in the RMT view as expressed in Part C, together with the added feature that the makers of that document were not present in court to explain how they reached their view.

[41] Parenthetically I note that the opinions are opposed by the opinion to the contrary (equally flawed for admissibility purposes) of Sergeant Vanderboom, a representative of CNCC tasked with identifying instances of excessive use of force, among other misconduct, when downloading and viewing videos of incidents at CNCC.

[42] In addition to hearing the evidence of the witnesses on the application, I have reviewed the cell corridor video made Exhibit 2 several times. Unfortunately, in the instant prior to CO Jackel grabbing Mr. Ogden's right wrist, one's view of the meal hatch area of Mr. Ogden's cell is blocked by the body of another CO in the foreground of the frame. Mr. Ogden said he did not grab at or reach out for CO Jackel, although he did acknowledge having extended his arm a short distance out the meal hatch. CO Jackel said that he perceived Mr. Ogden to be reaching for him or attempting to strike him. It may be that the narratives of both of these witnesses are truthful. If one accepts the evidence of CO Jackel, it is not clear to me from the excerpted portions of the Use of Force Policy that CO Jackel's application of force was in contravention.

[43] All of CO Jackel, CO Dreschler and CO Cunningham testified that, when CO Jackel and CO Wherley grabbed Mr. Ogden's arms, they repeatedly instructed him to withdraw his arms into his cell and that Mr. Ogden did not do so and, rather, grappled with them at the mouth of the meal hatch. Mr. Ogden's evidence was to the effect that he could not withdraw his arms from the hatch because they were being held by the COs. He denied having been told to withdraw them, although he did acknowledge that his exchange with CO Jackel began with CO Jackel's question whether he was going to permit CO Jackel to lock his meal hatch by removing his hands.

[44] I am unable to say from viewing the video or from hearing Mr. Ogden and the COs whether, as the COs said, Mr. Ogden was resisting their efforts to take control of his arms and force them back through the hatch or, as Mr. Ogden said, they were actually preventing Mr. Ogden from withdrawing his arms because the COs were pulling on them. The latter seems improbable given the COs' objective, acknowledged by Mr. Ogden, to get his meal hatch closed. In this uncertainty, once again, the extract from the Use of Force Manual does not establish that the steps taken by CO Jackel and CO Wherley were unauthorized, given the exceptions to the prohibition against the use of force against an inmate in s. 3.1.4 either "to enforce discipline and maintain order within the institution" or to defend another employee from assault. The same can be said of the application of force by CO Cunningham. Whether CO Cunningham's use of force in the form of the deployment of pepper spray was reasonable and not excessive "having regard to the nature of the threat posed by the inmate in all other circumstances of the case", as required by s. 3.1.6 of the policy, is a question which, in my view, neither the video nor the evidence on this application answers.

[45] Accordingly, I am not persuaded that Mr. Ogden was a victim of state misconduct in the course of the incident on August 7, 2017.

V. Conclusion

[46] I have found that the imposition of a stay is not an appropriate disposition in Mr. Ogden's case, nor is a reduction of his sentence, by reason of his having been subjected to excessive force by COs at CNCC while awaiting sentencing, either as a remedy pursuant to Charter s. 24(1) or pursuant to the sentencing provisions of the Criminal Code. In this regard, Mr. Ogden's application must be dismissed. It is clear, however, that the full range of Mr. Ogden's personal circumstances at the time of sentencing are relevant considerations in attempting to craft a fit sentence for his offences. Although my declining to find that Mr. Ogden was subjected to excessive force by the CNCC COs eliminates state misconduct as a potentially mitigating circumstance under s. 718.2(a) C.C., the fact of his having undergone a pepper spraying and its extremely unpleasant effects in the course of his remand is a factor to be taken into account. The significance of his experience and his injury in this regard is a matter for submission on the sentencing hearing scheduled to take place on January 3, 2018.

Released: January 5, 2018

Signed: Justice C.M. Harpur